Presentation by Secretary General Urban Rusnák 20 Years of the Energy Charter Treaty 7 March 2014

Facts about past/pending cases First case: Registered on 25 April At least 2 cases/year since then, except in A boom in 2005 (6 cases) and 2013 (16 cases). 51 cases have been detected to date: –Final Award: 17 (+Hrvatska where the specific claims under the ECT were dismissed but is still pending in relation to the BIT claims); –Settlement: 6 –Pending: 27

Outcome of (17+1) concluded cases Jurisdiction denied: 4 cases (including 2 where the claim was found to be fraudulent). The amounts claimed in 3 of those cases were US Billion 10; 4.6 and 3.8 –Additionally, in the Hrvatska case the tribunal dismissed the investors claims under the ECT (though still the case is pending regarding other claims under BIT). Tribunal examined the merit: –Some compensation by the state to the investor: 5 cases –Investor lost the case (mainly due to lack of evidence): 6 –State is liable but the investor either failed to prove the damages (Mohammad Ammar Al-Bahloul v. Tajikistan) or its claim for damages was considered premature and unfounded (AES v. Kazakhstan): 2 cases –Additionally, a partial decision dismissed most of the Electrabel´s claims but still 1 issue is pending.

How much of the claimed amount was awarded? ClaimAwardRatio Nykomb v. Latvia7,097,680 Lats1,600,000 Lats22.5% Petrobart v. Kyrgyzstan4,084,652 USD1,130,859 USD27.7% Kardassopoulos v. Georgia 350 M. USD90.25 M. USD 25.8% Remington v. Ukraine*36 M. USD4.5 M. USD12.5% Ascom v. Kazakhstan5 Billion USD506 M. USD9,9% * Information based on an unofficial report. The award is not publicly available.

Some of the main issues Lack of transparency Increasing number of arbitrations Need for increasing awareness of the rights and obligations under the treaty

PROPOSALS ONGOING: –Reorganize, catalogue, digitalize and make accessible the travaux preparatoires –publication of the decisions adopted by the Conference since 1994 (CCDECs) –publication of a consolidated text of the ECT (as modified by the Trade Amendment and including the technical changes to Annexes EM I, NI and EQ I approved in December 2013) –summaries of known ECT cases IN THE PIPELINE: –Commentary to the ECT

PROPOSALS UNDER DISCUSSION –Incorporation of the 2013 UNCITRAL Rules on Transparency in relation to all future arbitrations under the ECT and appointment of the Energy Charter Secretariat as the repository receiving and recording information about the arbitrations.  Protocol OR amendment –Conciliation expressly covered by the ECT, but not yet been used: Currently, the investor can opt for conciliation but there is some ambiguity about what happens if conciliation is not successful; can the investor go to international arbitration?  An interpretation and a conciliation mechanism would help to clarify the situation and facilitate the use of conciliation.

Thank you for your attention